Family, Estates & Trusts 



BC Spousal Support for Common-Law Same-Sex Couples

In BC spousal support obligations arise on breakdown of a relationship – even if the couple were not married – provided that the couple lived in a “marriage-like” relationship for a continuous period of at least two years. For many years, the courts grappled with what it means to be in an opposite-sex “marriage-like” relationship. In Molodowich v. Penttinen, [1980] O.J. No. 1904 (Ont. Dist. Ct.), the court set out what are now generally accepted characteristics of a marriage-like relationship. In a previous post, I discussed those generally accepted criteria and how they apply when determining BC spousal support obligations at the end of a common-law relationship.

BC spousal support for same-sex common-law couples

The Supreme Court of Canada took the analysis from Molodowich a step further in M. v. H., [1999] 2 SCR 3 (S.C.C.) a decision in which the court held that it was discriminatory for same-sex couples to be excluded from spousal support provisions in Ontario’s Family Law Act. Justice Cory, writing for the majority, approved of the criteria identified in Molodowich and found that same-sex couples and opposite-sex couples share the same functional elements and are equally able to be “conjugal” or marriage-like in quality.

BC spousal support law recognizes no two relationships are identical

The generally accepted characteristics of a marriage-like relationship include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, BC spousal support law recognizes that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be marriage-like.

In order to come within the definition of “spouse” for the purposes of determining whether BC spousal support is payable, neither opposite-sex couples nor same-sex couples are required to fit precisely into the traditional marital model. Even 20 years ago when it released its decision in M. v. H., the Supreme Court of Canada recognized that the differences between same-sex and opposite-sex couples are no greater than the differences across all types of relationships (at para. 60):

Certainly an opposite-sex couple may, after many years together, be considered to be in a conjugal relationship although they have neither children nor sexual relations. Obviously the weight to be accorded the various elements or factors to be considered in determining whether an opposite-sex couple is in a conjugal relationship will vary widely and almost infinitely. The same must hold true of same-sex couples. Courts have wisely determined that the approach to determining whether a relationship is conjugal must be flexible. This must be so, for the relationships of all couples will vary widely. […].

Take home point on BC spousal support for common-law same-sex couples

BC spousal support law recognizes common-law relationships between same-sex couples after the couple has been in a marriage-like relationship for a period of at least two years. The approach to determining whether a relationship was “marriage-like”, and thus whether BC spousal support obligations have arisen, is flexible and recognizes that the relationships of all couples will vary widely. If you have questions about your entitlement to BC spousal support, call (604) 900-2538 to arrange an appointment with one of the team of experienced family lawyers at Onyx Law Group.

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